Lubbe and Others v Cape Plc and related appeals

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD HOBHOUSE OF WOODBOROUGH
Judgment Date20 Jul 2000
Judgment citation (vLex)[2000] UKHL J0720-4

[2000] UKHL J0720-4

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Steyn

Lord Hoffmann

Lord Hope of Craighead

Lord Hobhouse of Woodborough

Schalk Willem Burger Lubbe

(Suing as Administrator of the Estate of Rachel Jacoba Lubbe)

And 4 Others

(Appellants)
And
Cape Plc
(Respondent)

And Related Appeals

LORD BINGHAM OF CORNHILL

My Lords,

1

The central issue between the plaintiffs and the defendant in these interlocutory appeals is whether proceedings brought by the plaintiffs against the defendant should be tried in this country or in South Africa.

2

There are at present over 3,000 plaintiffs. Each of them claims damages in one of the 11 writs issued against the defendant between February 1997 and July 1999. All the plaintiffs claim damages for personal injuries (and in some cases death) allegedly suffered as the result of exposure to asbestos and its related products in South Africa. In some cases the exposure is said to have occurred in the course of the plaintiff's employment, in others as a result of living in a contaminated area. The exposure is said to have taken place in different places in South Africa and over varying, but sometimes lengthy, periods of time, ending for claim purposes in 1979. One of the plaintiffs (Mrs. Pauline Nel, suing as personal representative of her deceased husband) is a British citizen resident in England. All the others are South African citizens resident in South Africa. Most of the plaintiffs are black and of modest means. Instructions to sue have been given to English solicitors by more than 800 additional claimants.

3

The defendant is a public limited company. It was incorporated in England in 1893 under the name Cape Asbestos Company Limited, principally to mine and process asbestos and sell asbestos–related products. From shortly after 1893 until 1948 it operated a blue asbestos (or crocidolite) mine at Koegas and a mill at Prieska, both in the Northern Cape Province. In 1925 the defendant acquired the shares in two companies, both incorporated in 1916: these were Egnep Limited and Amosa Limited, which operated a brown asbestos mine and mill at Penge in Northern Transvaal. For practical purposes the head office of these companies was in Cape Town. In 1940 a factory was opened at Benoni, near Johannesburg, to manufacture asbestos products. It was owned by a wholly–owned subsidiary of the defendant.

4

In 1948 the corporate structure of the defendant's group was changed. The mine at Koegas and the mill at Prieska were transferred to a newly–formed South African company, Cape Blue Mines (Pty.) Limited. The shares in Cape Blue Mines, Egnep and Amosa were transferred to a newly–formed South African holding company, Cape Asbestos South Africa (Pty.) Limited (CASAP). The offices of all these companies were in Johannesburg. All the shares in CASAP were owned by the defendant. In 1979 CASAP sold its shares in Cape Blue Mines, Egnep and Amosa to an unrelated third party buyer, which shortly thereafter sold them on. The defendant continued to hold an interest in the South African companies which operated out of the factory at Benoni until 1989 (although the factory had been closed earlier). Since then the defendant has had no presence anywhere in South Africa, and when the first of the writs in the current proceedings was served the defendant had no assets in South Africa.

5

Although originating in South Africa, the defendant's asbestos–related business has not been confined to that country. From 1899 the defendant operated a number of factories in England engaged in processing asbestos and manufacturing asbestos products. A factory at Barking was run by the defendant from 1913 until 1962, and then by a wholly–owned subsidiary until the factory was closed in 1968. Another subsidiary, incorporated in Italy, operated a factory in Turin which made asbestos products from 1911 until 1968, with an intermission during the war years.

6

Some of the claims made in these actions date back to times when the defendant was itself operating in Northern Cape Province. But the central thrust of the claims made by each of the plaintiffs is not against the defendant as the employer of that plaintiff or as the occupier of the factory where that plaintiff worked, or as the immediate source of the contamination in the area where that plaintiff lived. Rather, the claim is made against the defendant as a parent company which, knowing (so it is said) that exposure to asbestos was gravely injurious to health, failed to take proper steps to ensure that proper working practices were followed and proper safety precautions observed throughout the group. In this way, it is alleged, the defendant breached a duty of care which it owed to those working for its subsidiaries or living in the area of their operations (with the result that the plaintiffs thereby suffered personal injury and loss). Some 360 claims are made by personal representatives of deceased victims. As reformulated during the first Court of Appeal hearing the main issue raised by the plaintiffs' claim was put in this way:

"Whether a parent company which is proved to exercise de facto control over the operations of a (foreign) subsidiary and which knows, through its directors, that those operations involve risks to the health of workers employed by the subsidiary and/or persons in the vicinity of its factory or other business premises, owes a duty of care to those workers and/or other persons in relation to the control which it exercises over and the advice which it gives to the subsidiary company?"

7

The first of the writs in these proceedings was issued by Mrs. Lubbe and four other plaintiffs on 14 February 1997 (and when she died the action was continued by Mr. Lubbe as her personal representative). The defendant promptly applied to stay the proceedings on the ground of forum non conveniens. This application came before Mr. Michel Kallipetis Q.C. sitting as a deputy judge of the Queen's Bench Division, who acceded to it. He sought to apply the principles authoritatively laid down by this House in Spiliada Maritime Corporation v. Cansulex Ltd. [1987] A.C. 460, and for reasons given in a lengthy and careful judgment dated 12 January 1998 he concluded that everything pointed towards South Africa as the natural forum for the trial of the action and that there was no pressing circumstance which would justify him in deciding that the interests of justice required a trial in this country instead of the natural forum in South Africa.

8

The plaintiffs appealed and on 30 July 1998 the Court of Appeal (Evans, Millett and Auld L.JJ.) allowed the appeal: [1998] C.L.C. 1559. Like the judge, the Court of Appeal also sought to apply the principles in Spiliada. But it reached a different conclusion, holding that the judge had failed to give weight to the fact that the negligence alleged was against the defendant company as opposed to those persons or companies responsible for running its South African businesses from time to time, and that the judge had failed to take account of the fact that the South African forum had been unavailable to the plaintiffs until the defendant offered undertakings during the hearing before the judge, the availability of the South African forum being conditional upon those undertakings being fulfilled (at page 1573). Taking those matters into account, the Court of Appeal ("the first Court of Appeal") held that the defendant did not show that South Africa was clearly and distinctly the more appropriate forum. In fairness to the judge it should be observed that the second of these points was not raised before him (it was indeed raised by the first Court of Appeal itself) and he could not therefore be reproached for failing to take it into account.

9

At that stage, therefore, the plaintiffs were at liberty to pursue their action in England. Before either of these decisions the sole plaintiff resident in England (Mrs. Nel) had also issued proceedings as personal representative of her husband, joining no other plaintiff. The defendant sought to challenge the decision of the first Court of Appeal but leave to do so was refused by that court and, following an oral hearing, by your Lordships' House on 14 December 1998.

10

After the refusal of leave by your Lordships in December 1998, writs were issued by all the remaining plaintiffs in these proceedings. It is unnecessary to summarise the detailed procedural steps which followed. It is enough to note that the defendant applied to stay all the actions, including the Lubbe action, on grounds of forum non conveniens and abuse of process, and directions were given to consolidate the various proceedings (without prejudice to the position of the Lubbe plaintiffs) into a group action.

11

The defendant's summons to stay came before Buckley J. who heard detailed submissions and considered copious documentary material. He gave a full judgment in writing on 30 July 1999: [2000] 1 Lloyd's Rep. 139 at 141. He concluded that South Africa was clearly and distinctly the more appropriate forum for trial of this group action and that there were no sufficient reasons for nevertheless refusing a stay (page 151). In reaching this last opinion he considered and discounted a number of objections raised by the plaintiffs, including the alleged unavailability of legal aid in South Africa. Of that submission he said (page 150):

"In all the circumstances, I cannot find that legal aid would not be granted, if applied for in South Africa. I readily accept there may be difficulties and some delay but that, at least in part, must flow from the claimants' decision not to apply for legal aid in South Africa and to issue proceedings here, when, as [the plaintiffs' solicitor] well knew, the defendant would contest jurisdiction."

12

The judge accordingly ordered a stay of proceedings. He...

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